Madras High Court
C.Rajakumari vs City Union Bank Ltd on 8 January, 2013
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08/01/2013
CORAM
THE HONOURABLE MR.JUSTICE G.RAJASURIA
C.R.P.(PD)(MD)No.41 of 2013
and
M.P.(MD)No.1 of 2013
1. C.Rajakumari
2. A.Raja Rajeswari
3. P.Rajakantham ... Petitioners/Respondents 1 to 3/
Petitioners/Plaintiffs
Vs.
1. City Union Bank Ltd.,
Kumbakonam,
through its authorized Officer/
Deputy General Manager,
Having his central Office at
Door NO.49, T.S.R.(Big) Street,
Kumbakonam-621 001.
... 1st Respondent/Appellant/
2nd Respondent/2nd Defendant
2. S.Rajarathinam ... 2nd Respondent/4th Respondent
/1st Respondent/2nd Defendant
Prayer
Petition filed under Section 115 of the Code of Civil Procedure, to set
aside the fair and decreetal order dated 09.11.2012 made in C.M.A.No.11 of
2011, on the file of the V Additional District Judge, Madurai and to restore the
fair and decreetal order dated 28.01.2011 made in I.A.No.48 of 2011 in O.S.No.29
of 2011, on the file of the II Additional Subordinate Judge, Madurai.
!For Petitioners ... Mr.K.Hemakarthikeyan
^For Respondents ... Mr.D.Senthil
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:ORDER
The Civil Revision Petition has been filed to get set aside the order dated 09.11.2012 passed in C.M.A.No.11 of 2011, by the learned V Additional District Judge, Madurai and to restore the order dated 28.01.2011 passed in I.A.No.48 of 2011 in O.S.No.29 of 2011, by the learned I Additional Subordinate Judge, Madurai.
2. Heard both sides.
3. A recapitulation and re'sume' of facts absolutely necessary and germane for the disposal of this Civil Revision Petition would run thus:
O.S.NO.29 of 2011 was filed by the revision petitioners/plaintiffs seeking partition of the suit house property, which is sought to be brought for sale under SARFAESI proceedings by the Authorities concerned, at the instance of the City Union Bank Ltd. I.A.No.48 of 2011 was filed by the same plaintiffs seeking an injunction so as to prevent the suit property from being brought for sale under the SARFAESI proceedings. According to the revision petitioners/plaintiffs, they are having their shares in that property along with the first defendant viz., Rajarathinam, who in fact, mortgaged the property in favour of the City Union Bank Ltd., in connection with a loan availed by him. The lower Court granted an injunction, as against which, the appeal in C.M.A.No.11 of 2011 was filed. Whereupon, the lower Appellate Court set aside the order passed by the lower Court.
4. Being aggrieved by and dissatisfied with the order passed by the lower Appellate Court, this Civil Revision Petition has been focussed on various grounds.
5. The learned Counsel for the revision petitioner/plaintiffs would pyramid his arguments by pointing out that the said Rajarathinam - the first defendant fraudulently created an unregistered Will as though the deceased father of the Rajarathinam as well as the revision petitioners, executed a Will bequeathing the entire suit property in favour of him and hence, the trial Court correctly granted an order of injunction. However, the lower Appellate Court simply reversed it. Accordingly, he would pray for the restoration of the order passed by the trial Court in the I.A., granting injunction.
6. The learned Counsel for the respondent bank-the Authorised Officer, would put forth and set forth his arguments which would succinctly and precisely be set out thus:
Section 34 of the SARFAESI Act restricts the powers of the civil Court from granting an order of injunction in the matters of this nature. The lower Court erroneously granted the order of injunction but the lower Appellate Court legally and promptly passed the order reversing it, warranting no interference in this Civil Revision Petition filed under Section 115 of the Code of Civil Procedure.
7. The point for consideration is as to whether there is any perversity or illegality in the order passed by the lower Appellate Court in setting aside the order of the lower Court in granting injunction restraining the second respondent from proceedings under the SARFASI Act in respect of the suit property?
The Point:
8. The learned Counsel for the revision petitioners would cite the decision of the Honourable Apex Court in NAHAR INDUSTRIAL ENTERPRISES LIMITED Versus HONG KONG AND SHANGHAI BANKING CORPORATION reported in (2009)8 Supreme Court Cases 646. Certain excerpts from it, would run thus:
"86. The Debts Recovery Tribunal cannot pass a decree. It can issue only recovery certificates. [See Sections 19(2) and 19(22) of the Act.] The power of the Tribunal to grant interim order is attenuated with circumspection. [See Dataware Design Labs (P) Ltd. v. SBI reported in (2005) 127 Comp Cas 176(Ker) at p. 184.] Concededly in the proceeding before the Debts Recovery Tribunal detailed examination, cross-examinations, provisions of the Evidence Act as also application of other provisions of the Code of Civil Procedure like interrogatories, discoveries of documents and admission need not be gone into. Taking recourse to such proceedings would be an exception. Entire focus of the proceedings before the Debts Recovery Tribunal centres round the legally recoverable dues of the bank.
87. Should we adopt the principle of purposive interpretation so as to hold that the DRT would be a civil court?
88. We have noticed hereinbefore that civil courts are created under different Acts. They have their own hierarchy. They necessarily are subordinate to the High Court. The appeals from their judgment will lie before a superior court. The High Court is entitled to exercise its power of revision as also superintendence over the said courts. For the aforementioned purpose, we must bear in mind the distinction between two types of courts viz. civil courts and the courts trying disputes of civil nature. Only because a court or a tribunal is entitled to determine an issue involving civil nature, the same by itself would not lead to the conclusion that it is a civil court. For the said purpose, as noticed hereinbefore, a legal fiction is required to be created before it would have all attributes of a civil court.
89. The Tribunal could have been treated to be a civil court provided it could pass a decree and it had all the attributes of a civil court including undertaking of a fullfledged trial in terms of the provisions of the Code of Civil Procedure and/or the Evidence Act. It is now trite law that jurisdiction of a court must be determined having regard to the purpose and object of the Act. If Parliament, keeping in view the purpose and object thereof thought it fit to create separate Tribunal so as to enable the banks and the financial institutions to recover the debts expeditiously wherefor the provisions contained in the Code of Civil Procedure as also the Evidence Act need not necessarily be resorted to, in our opinion, by taking recourse to the doctrine of purposive construction, another jurisdiction cannot be conferred upon it so as to enable this Court to transfer the case from the civil court to a tribunal.
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97. A debtor under the common law of contract as also in terms of the loan agreement may have an independent right. No forum has been created for endorsement of that right. Jurisdiction of a civil court as noticed hereinbefore is barred only in respect of the matters which strictly come within the purview of Section 17 thereof and not beyond the same. The civil court, therefore, will continue to have jurisdiction.
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143. One of the contentions which have been raised is whether the transactions under derivative agreements would come within the purview of the DRT Act. Of course, a Tribunal will have a jurisdiction to decide the issue being a jurisdictional issue. Furthermore, the Company has alleged fraud and misrepresentation. This Court in Mardia Chemicals Ltd. v. Union of India69 has also held that even in such an event, the jurisdiction of the civil court can be invoked. Several other issues of complicated nature may arise before the civil court. We, therefore, are of the opinion that it may not be a fit case where we should exercise our jurisdiction under Article 142 of the Constitution of India."
9. He would also cite the decision of this Court in Arasa Kumar and another Vs. Nallammal and others reported in (2004)2 M.L.J. 252 and an excerpt from it would run thus:
"30. Sec.9 C.P.C. and bar of jurisdiction created under relevant sections in respect of the Co-operative Societies Act, Arbitration and Conciliation Act, 1996 and also Sec.29 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 and under Rule 40 of the Income Tax (Certificate Proceedings) Rules, 1962 an also the bar under the Tamil Nadu Hindu Religious and Charitable Endowments Act,1959 were all considered by this Court and the Apex Court as referred supra and now, it is manifestly clear that the power under Sec.34 of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act is not absolute and the same is subject to certain restrictions, they are: (1) that the parties, who filed the suit must be a party to the liabilities created in favour of the secured creditor, (2) the disputes between the parties could be resolved under the provisions of the Act itself, (3)that if the claim made by the parties is outside the jurisdiction of the Debts Recovery Tribunal or the appellate tribunal or any action taken or to be taken under this Act and also under the Recovery of Debt due to Banks and Financial Institutions Act,1993 and the dispute raised by the parties cannot be adjudicated by any of the tribunal or authority, created under the act or under any other Act, the right of the parties to approach the Civil Court for appropriate relief cannot be deprived and taken away.
31. Admittedly, in our case, the petitioners have filed the suit for partition including the item, in respect of which, the 3rd respondent taken out proceedings to bring the same for sale without the intervention of the Court and till the rights of the parties are determined by the Civil Court, and the Civil Court alone could decide and determine the rights of the parties in respect of their respective claims in the suit for partition, the 3rd defendant, though a secured creditor, cannot bring the property for sale by invoking the bar under Sec.34 of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act or the bar under Sec.13 of the Act. The Court below has not taken into consideration of these aspects and as a matter of fact, these salient features were not brought to the notice of the Court below, which resulted in passing of an erroneous order, which is liable to be set aside."
10. The learned Counsel for the first respondent Bank would also cite the decision of this Court in Sumathi Vs. 1. Sengottaiyan and Others reported in 2010(3) CTC 53 and an excerpt from it would run thus:
"11. True that the plaintiff may institute a Suit for partition before the competent Civil Court but she cannot lawfully challenge the proceedings initiated by the secured creditor under the SARFAESI Act, before the Civil Court as there is a clear bar under Section 34 of the SARFAESI Act. Section 34 of the SARFAESI Act imposes a bar on the Civil Court to grant any relief of injunction with respect to any action taken in pursuance of the power conferred under the SARFAESI Act. Therefore, the Trial Court has no authority to entertain the prayer for injunction sought for by the plaintiff as against the secured creditors who had already initiated proceedings under the SARFAESI Act.
12. It is not as it the plaintiff is remediless. In fact,the first respondent took up the matter both before the Debts Recovery Tribunal as well as Debts Recovery Appellate Tribunal but miserably failed in his attempts. Even if the revision petitioner has got any grievance as against the measures taken under the SARFAESI Act, she can very well knock at the doors of the Debts Recovery Tribunal invoking the provisions under Section 17 of the SARFAESI Act."
12. As such, the sum and substance of the decisions cited above, would be to the effect that the current law is to the effect that the Civil Court is having no jurisdiction to grant injunction in respect of SARFAESI proceedings. If at all any person is aggrieved by it, he has to approach the same Authority for redressal and an appeal remedy is also contemplated therein. In such a case, the trial Court was totally unjustified in granting injunction and the lower Appellate Court correctly reversed it. Even as per the preponderance of probabilities, it is quite obvious and axiomatic that the deceased proprietor viz., S.R.Sundaresan died admittedly in the year 1983; 30 years got elapsed and there is nothing to indicate as to what all along the so called joint owners/revision petitioners/plaintiffs were doing, without seeking partition.
13. Only when the suit property was brought for sale under the SARFAESI Act, they did choose to file the partition suit as against their brother as well as the first respondent/Authorised Officer of the City Union Bank Ltd., and sought for injunction. As such, there is no ex facie or prima facie bonafides on the part of the plaintiffs to seek injunction. He, who seeks equity, must do equity and he who comes to equity must come with clean hands. Hence, the plaintiffs are not entitled to any injunction. Accordingly, no interference is warranted as against the order passed by the lower Appellate Court. Furthermore, as against the order passed in C.M.A.No.11 of 2011, no Civil Revision Petition would lie under Section 115 of the Code of Civil Procedure, in view of the decision of this Court in Durairaj and others v. Venugopal and another reported in 2012-3-L.W. 807. Certain excerpts from it, would run thus:
"12. I would like to refer to sub section (2) of Section 115 of CPC, which would unambiguously and unequivocally highlight and spotlight the fact that if appeal lies in respect of a matter, then no revision could be entertained under Section 115 of CPC.
13. The warp and woof of the contention of the learned counsel for the respondent/plaintiff is to the effect that as against the order passed in the CMA, inasmuch as no further appeal is contemplated, the only remedy could be the one under Section 115 of CPC. I cannot countenance such a view for the reason, that had the legislators thought that that should be the legal position as canvassed by the learned counsel for the respondent/plaintiff, the legislators would have spelt out thus: "the revision under this Section [S.115 of CPC] shall not lie without exhausting the appeal remedy, if any," but that is not the legislative language and that was not the intention of the legislators as well. In Surya Devi's case (supra), the Hon'ble Apex Court glaringly and pellucidly shed light on the point that no revision under Section 115 of CPC would lie as against the order in Appeal. The legislators in their wisdom thought that in respect of certain matters appeal remedy if provided under law, then the parties concerned should get themselves satisfied with that remedy and once again, they cannot carve out their own dubious way of approaching the High Court under Section 115 of CPC. The mischief sought to be suppressed by the amendment of Section 115 of the Code of Civil Procedure is axiomatic and obvious and if the view of the counsel for the respondent/plaintiff is accepted, it would amount to opening the flood gate throwing to winds the spirit and essence of Section 115 of the Code of Civil Procedure.
14. The learned counsel for the respondent/plaintiff also inviting the attention of this Court to the proviso appended to sub Section (1) of Section 115 of CPC, would try to buttress and fortify his view, but an analysis of the said proviso would reveal and demonstrate that it is against his case. To maintain a revision under the said proviso, hypothetically the impugned interim order should be visualized thus: Gramatically "unreal past" situation in the said proviso is contemplated. If such order had been passed in his favour, whether it would have the effect of finally disposing of the suit or the proceedings before the lower court. Here, it is crystal clear that if the said order had been passed under Order IX Rule 13 of the Code of Civil Procedure by allowing the interlocutory application, the main suit itself would have got revived and the proceedings in the main suit would be in progress. The same position would be if the CMA had been allowed. Hence the said proviso cannot be pressed into service by the respondent/plaintiff in support of his proposition that only a revision under Section 115 of the Code of Civil Procedure would lie.
15. Needless to point out, that before 1976 amendment of CPC the position was different and the objects and reasons relating to amendment of Section 115 of the Code of Civil Procedure is worthy of being reproduced here under:
[Report of the Joint Committee-Gazette of India, Ext., dt.1-4-1976, Pt.II, S.2, p.804/10-11] "Amendments: Objects and Reasons.- Clause 43 (Original clause 45).- By clause 45 of the Bill, section 115 of the Code was proposed to be omitted. The question whether it is at all necessary to retain section 115 was carefully considered by the Committee. The Law Commission has expressed the view that, in view of article 227 of the Constitution, section 115 of the Code is no longer necessary. The Committee, however, feel that the remedy provided by article 227 of the Constitution is likely to cause more delay and involve more expenditure. The remedy provided in section 115 is on the other hand, cheap and easy. The Committee, therefore, feel that section 115, which serves a useful purpose, need not be altogether omitted particularly on the ground that an alternative remedy is available under article 227 of the Constitution.
The Committee feel that the expression "case decided" should be defined so that the doubt as to whether section 115 applies to an interlocutory order may be set at rest. Accordingly, the Committee have added a proviso and an Explanation to section 115.
[Statement of Objects and Reasons (Bill 1999).] Amendments: Objects and Reasons.-Clause 12.- Section 115 of the Code provides for revision by the High Court or an order or decision of any Court subordinate to such High Court. The Malimath Committee noticed that often the records of the lower Courts are sent to the High Court in the revisional proceedings. It is imperative that records of proceedings pending in the subordinate Court should not be sent unless High Court so desires and revision should not operate as stay of proceedings before the trial Court. The Committee while agreeing in principle that scope of interference against interlocutory orders should be restricted, felt that the object can be achieved more effectively without demanding the High Court of the power of revision. Clause 12 seeks to achieve the above object by suitable amendments to section 115.
16. Wherefore, if the view of the learned counsel for the respondent/plaintiff is accepted, it would amount to rendering the very restrictive scope found embedded in Section 115 of CPC nugatory and otiose. As such, I am of the considered view that once appeal remedy is contemplated in respect of an order and the appeal remedy itself has been exhausted, then the question of invoking Section 115 of CPC would be a well-neigh impossibility.
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20. It is quite obvious and axiomatic that when appeal remedy is contemplated, revision under Section 115 of CPC would not lie. Then the core question arises as to what would happen to a litigant who is really having some grievance if there is any gross perversity in the impugned order. At this juncture, I recollect certain excerpts from the decision of the Hon'ble Apex Court reported in 2005 (6) SCC 344 [Salem Advocate Bar Assn., T.N. v. Union of India]; certain excerpts from it would run thus:
"40. Section 115 of the Code vests power of revision in the High Court over courts subordinate to it. Proviso to Section 115(1) of the Code before the amendment by Act 46 of 1999 read as under:
"Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where"
(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or
(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made." (emphasis supplied) Now, the aforesaid proviso has been substituted by the following proviso:
"Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings."
The aforesaid clause (b) stands omitted. The question is about the constitutional powers of the High Courts under Article 227 on account of omission made in Section 115 of the Code. The question stands settled by a decision of this Court in Surya Dev Rai v. Ram Chander Rai holding that the power of the High Court under Articles 226 and 227 of the Constitution is always in addition to the revisional jurisdiction conferred on it. Curtailment of revisional jurisdiction of the High Court under Section 115 of the Code does not take away and could not have taken away the constitutional jurisdiction of the High Court. The power exists, untrammelled by the amendment in Section 115 and is available to be exercised subject to rules of self-discipline and practice which are as well settled."
As such in certain circumstances, if at all the party concerned could make out a case under Article 227 of the Constitution of India, then he could petition the High Court invoking the said provision of law."
Wherefore, the point is answered accordingly.
14. On balance, the Civil Revision Petition is dismissed. Consequently, the connected Miscellaneous Petition is dismissed. No costs.
15. On hearing the pronouncement of the order, the learned Counsel for the revision petitioners/plaintiff would make an extempore submission that suitable direction might be given to the lower Court to dispose of the suit in O.S.No.29 of 2011 within a time frame. I could see considerable force in the submission of the learned Counsel for the revision petitioners and accordingly, the following direction is issued:
16. The learned II Additional Subordinate Judge, Madurai shall do well to see that O.S.No.29 of 2011 is disposed of as expeditiously as possible, preferably within a period of four months from the date of receipt of a copy of this order.
ssl To The Court of V Additional District Judge, Madurai.
The Court of II Additional Subordinate Judge, Madurai.